Marquette Law ReviewVolume 65Issue 4 Summer 1982 Article 8

Termination of the At Will Employee: The GeneralRule and the Wisconsin RuleFaye L. Calvey

Follow this and additional works at: http://scholarship.law.marquette.edu/mulr

Part of the Law Commons

This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion inMarquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contactmegan.obrien@marquette.edu.

Repository CitationFaye L. Calvey, Termination of the At Will Employee: The General Rule and the Wisconsin Rule, 65 Marq. L. Rev. 637 (1982).Available at: http://scholarship.law.marquette.edu/mulr/vol65/iss4/8

TERMINATION OF THE AT WILLEMPLOYEE: THE GENERAL RULE AND THE

WISCONSIN RULE

I. INTRODUCTION

As far back as 1871, the Wisconsin Supreme Court statedthe general rule for the termination of an at will employmentrelationship: "Either party ... [is] at liberty to terminate theservice at any time, no definite period for which the service[is] to continue having been agreed upon."1 In addition, thecourt decided that an agreement to pay for services at the rateof a certain amount per year was a hiring for an indefinitetime and, therefore, governed by the general rule.2 In otherwords, the Wisconsin definition of an at will employee in-cludes an employee whose contract is not for a specific term aswell as an employee who has no employment contract at all.

The Wisconsin court's position is analogous to the generalAmerican rule as stated in numerous treatises3 and cases.4

However, recent decisions in a growing number of jurisdic-tions have limited the harshness of the at will doctrine.' Thiscomment will examine the increasing recognition of a need tolimit the traditional doctrine and will discuss some of theleading cases. An analysis of alternative theories of recoveryfor the wrongfully discharged at will employee will follow.Since there has been some indication that Wisconsin will jointhe modern trend,e this comment will also focus on the pre-sent status of the law in Wisconsin as well as the future of thewrongful discharge cause of action in this state.

1. Prentiss v. Ledyard, 28 Wis. 131, 133 (1871).2. Id.3. See, eg., 53 Am. Jun. 2D Master & Servant § 43 (1970); 9 S. WnLISTON, A

TREATISE ON THE LAW OF CONTRACTS § 1017 (3d ed. 1967).4. Hablas v. Armour & Co., 270 F.2d 71 (8th Cir. 1959); Union Labor Hosp. Ass'n

v. Vance Redwood Lumber Co., 158 Cal. 551, 112 P. 886 (1910). See also Annot., 62A.L.R.3d 271 (1975).

5. See infra notes 46-68, 83-89 and accompanying text.6. Ward v. Frito-Lay, Inc., 95 Wis. 2d 372, 290 N.W.2d 536 (Ct. App. 1980). See

also Comment, Wrongful Discharge of Employees Terminable at Will - A NewTheory of Liability in Arkansas, 34 ARK. L. REv. 729, 730 n.5 (1981) (Wisconsinlisted with states that would adopt the public policy exception to the at will doctrineunder appropriate facts).

MARQUETTE LAW REVIEW

II. EVOLUTION OF THE DOCTRINE

A. Historical Background

English common law provided a servant a measure of pro-tection from unjust dismissals by his master.7 Employment foran indefinite period was construed to be for one year.8 Duringthe nineteenth century the rule also developed that, unlessthere was cause for summary discharge, employment could beterminated only after reasonable notice.9

American courts, influenced by the laissez-faire theory ofthe industrial revolution, diverged from the English rule.10 Anearly statement of the doctrine was formulated by a treatisewriter and was thereafter generally relied upon by courts:

With us the rule is inflexible, that a general or indefinite hir-ing is prima facie a hiring at will, and if the servant seeks tomake it out a yearly hiring, the burden is upon him to estab-lish it by proof. A hiring at so much a day, week, month oryear, no time being specified, is an indefinite hiring, and nopresumption attaches that it was for a day even, but only atthe rate fixed or whatever time the party may serve."

For a time, the doctrine was even accorded constitutional pro-tection in two United States Supreme Court decisions whichstruck down legislation proscribing employee discharges forunion membership.12 Additional "sustenance" was receivedfrom the contract principles of mutuality of obligation, con-sideration and freedom of contract. 18

7. E.g., Peck, Unjust Discharges from Employment: A Necessary Change in theLaw, 40 Omo ST. L.J. 1, 11 (1979).

8. 1 W. BLACKSTONE, COM rAST-s *425.

9. Peck, supra note 7, at 11.10. See generally Note, A Common Law Action for the Abusively Discharged

Employee, 26 HASTINGS L.J. 1435, 1438-43 (1975). The laissez-faire theory held thatthe government should foster economic growth by exercising as little control as possi-ble over trade and industry.

11. H. WOOD, A TREATISE ON THE LAW OF MASTER AND SERVANT § 134, at 272(1877), quoted in Note, supra note 10, at 1439.

12. Coppage v. Kansas, 236 U.S. 1 (1915); Adair v. United States, 208 U.S. 161(1908).

13. Blades, Employment at Will v. Individual Freedom: On Limiting the AbusiveExercise of Employer Power, 67 COLUM. L. REV. 1404, 1416 (1967).

[Vol. 65:637

DISCHARGE OF AT WILL EMPLOYEES

B. The Beginnings of Change

In spite of the universal acceptance and almost mechanicalapplication by American courts of the employment at willdoctrine,14 commentators began questioning its continued va-lidity in the light of changed economic conditions and socialpolicies. 15 With the demise 6 of Adair v. United States17 andCoppage v. Kansas,'8 "the philosophical underpinnings of the[traditional] rule have fallen into decay," one authordeclared. 19

Increasingly, both federal and state legislation restrictedan employer's power to terminate employees. 20 These statu-tory exceptions to the general rule can be divided into twomain categories: 1) legislation relating to an employee's activ-ity; and 2) legislation relating to an employee's status.2 Theforemost example in the first category is the National LaborRelations Act,22 which protects the employee's right to partici-pate in labor organizations and to engage in collective bar-gaining. The laws of some states governing worker's compen-sation also protect the employee against discrimination forfiling a claim or suffering a job-related injury.2 s Examples inthe second category include legislation prohibiting dischargeof an employee because of race, color, religion, sex or nationalorigin,24 legislation prohibiting age discrimination,2 5 and laws

14. See cases cited supra note 4.15. See Blades, supra note 13; Blumrosen, Settlement of Disputes Concerning

the Exercise of Employer Disciplinary Power. United States Report, 18 RUTGEMS L.REv. 428 (1964); Summers, Individual Protection Against Unjust Dismissal: Timefor a Statute, 62 VA. L. REv. 481 (1976); Comment, Towards a Property Right inEmployment, 22 BUFFALO L. REv. 1081 (1973); Note, Implied Contract Rights to JobSecurity, 26 STAN. L. REV. 335 (1974).

16. Legislation restricting the employer's power of discipline for specified reasonswas adopted and upheld in NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).

17. 208 U.S. 161 (1908).18. 236 U.S. 1 (1915).19. Blades, supra note 13, at 1416.20. See generally Peck, supra note 7, at 13-17.21. Marsack, Termination of Employees at Will 2, Wis. State Bar Lab. Law Sec.22. 29 U.S.C. §§ 151-69 (1976). Other federal statutes protect employees who file

complaints or testify before certain administrative agencies. See 29 U.S.C. §§215(a)(3), 660(c)(1) (1976). Employees whose wages are garnished have limited pro-tection against discharge under 15 U.S.C. § 1674(a) (1976).

23. See, e.g., Wis. STAT. § 102.35 (1979).24. Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (1976).25. Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-34 (1976).

19821

MARQUETTE LAW REVIEW

prohibiting discrimination on the basis of physical handicap.2 6

Public employees receive a measure of constitutional pro-tection from discharge under certain circumstances, stemmingfrom the first and fourteenth amendments.27 In addition, civilservice systems and other ternurial and union securities gen-erally protect these workers from being discharged without"just cause."28

1I. THE NEED TO LIMIT THE AT WILL DocTmiNE

A. The Employee's Interests

The previously noted safeguards against unjust dismissalare significant. But it is important to remember that nearlysixty-five percent of all employees in the United States arestill hired on an at will basis.29 Therefore, the protection of-fered by arbitration under collective bargaining agreements isnot afforded them. In addition, present legislation offers onlynarrow protection against specific discriminatory acts. It is theperceived necessity to protect these nonunionized private sec-tor employees that has led courts in a growing number of ju-risdictions to limit the at will doctrine judicially.30

Economic conditions and social policies have changed sincethe period of individualism when the at will doctrine devel-oped.3 1 The basis of economic security has shifted from prop-erty ownership to job holding, and most workers have becomecompletely dependent upon wages from others for their liveli-hood.3 2 In addition, there has been an ever increasing concen-

26. Rehabilitation Act of 1973, 29 U.S.C. §§ 701-96 (1976).27. E.g., Pickering v. Board of Educ., 391 U.S. 563 (1968).28. Annot., 24 ATLA L. REP. 386, 387 (1981).29. Another 21% are union members, and almost 15% are federal and state em-

ployees. See BURE Au OF THE CENSUS, U.S. DEPT. OF COMMERCE, STATISTICAL ABSTRACTOF THE UNITED STATES 394 (1980), Table No. 652 (total labor force), Table No. 714, at429 (union membership) and Table No. 519, at 318 (government employees).

30. See Note, Kelsay v. Motorola, Inc.: Tort Action for Retaliatory DischargeUpon Filing Workmen's Compensation Claims, 12 J. MAR. J. PRAC. & PROc. 659,671-72 (1979).

31. Id. at 671.32. It has been aptly stated that:We have become a nation of employees. We are dependent upon others for ourmeans of livelihood, and most of our people have become completely depen-dent upon wages. If they lose their jobs they lose every resource, except for therelief supplied by the various forms of social security. Such dependence of themass of the people upon others for all of their income is something new in the

[Vol. 65:637

DISCHARGE OF AT WILL EMPLOYEES

tration of economic power in the hands of fewer employers.3 3

The worker can no longer go from job to job with relativeease. The range of alternative employment has narrowed asmodern technology requires more specialization." Decreasingmobility is due in part to seniority policies.35

This dependence upon the employer is social as well as ec-onomic. Modern studies have shown that employees rely on astable employment relationship for much of their self-es-teem.38 In addition, employees base many life decisions on theexpectation of continuing employment. Because of his depen-dence on the job, the employee may have to submit to intimi-dation and coercion.37 The realities of the situation do notusually leave him free to terminate the employment himselfnor to bargain on an equal basis with his employer for a "justcause" provision in his contract.3 8

Furthermore, the employee's interest in job security in-cludes deferred compensation, such as pension rights, extravacation time, profit-sharing plans and other fringe benefits.A wrongful discharge may cut off these benefits, giving theemployer "a windfall."39

B. The Employer's Interests

Courts have traditionally upheld the employer's legitimateinterest in running the business efficiently and profitably. 0

Fundamental control of the work place has been seen as amanagement prerogative. Unquestionably, employers needflexibility in dealing with the uncertainties of the businessworld due to fluctuation in business cycles, shifts in demandand technological changes. As a result, courts have permitted

world. For our generation, the substance of life is in another man's hands.F. TANNENBAUM, A PHILosopHY OF LABOR 9 (1951), quoted in Blades, supra note 13,at 1404 (emphasis in original).

33. Blades, supra note 13, at 1405.34. Id.35. Note, supra note 15, at 338.36. See Note, supra note 10, at 1444.37. See Comment, Recognizing the Employee's Interests in Continued Employ-

ment - The California Cause of Action for Unjust Dismissal, 12 PAc. L.J. 69, 90-91(1980).

38. See Note, supra note 10, at 1443.39. Comment, supra note 37, at 91.40. See Monge v. Beebe Rubber Co., 114 N.H. 130, -, 316 A.2d 549, 552 (1974);

Comment, supra note 37, at 79.

1982]

MARQUETTE LAW REVIEW

employers wide discretion in personnel decisions in order thatthey may retain only the best qualified employees.41

The lack of protection of at will employees lies in this "as-sumed importance" of preserving the employer's freedom tocontrol the work force.42 But the failure of American law toprotect against unjust dismissals is out of step with the stan-dards and experience of Great Britain, West Germany, Japanand other industrialized nations.43 At least one author hassuggested that "abandonment of the at will rule may improvebusiness productivity in the long run"44 because arbitrary dis-charges of able employees involve a waste of training, con-tinuity and expertise. Employee insecurity has a negative im-pact on a business, whereas a cooperative atmosphere wouldincrease company loyalty and morale, thereby reducing theturnover rate and absenteeism. The business would also real-ize savings in the form of reduced training costs. 45

C. Balancing the Interests

Today, a growing number of courts have realized that theemployer's interests do not exist in a vacuum.46 Recent judi-cial decisions restricting the employer's freedom to dischargeat will employees can properly be considered a balancing ofthe employer's legitimate business interests with the interestof the employee in job security. While traditionally the scalehas been tipped in favor of the employer, some courts are nowputting the public's interest on the employee's side.

IV. RECENT CASES IN OTHER JURISDICTIONS

A. The Public Policy Exception

In the earliest and probably most influential case,Petermann v. International Brotherhood of Teamsters,1 theplaintiff was allegedly discharged for disobeying his em-ployer's order to give false testimony before a legislative com-

41. See Note, Protecting at Will Employees Against Wrongful Discharge: TheDuty to Terminate Only in Good Faith, 93 HARv. L. REV. 1816, 1834-35 (1980).

42. Peck, supra note 7, at 13.43. Id. at 11-12. See also Note, supra note 41, at 1836.44. Note, supra note 41, at 1835.45. See id. at 1834-35; Comment, supra note 37, at 81 n.90.46. See cases cited infra notes 46-68, 83-89.47. 174 Cal. App. 2d 184, 344 P.2d 25 (1959).

[Vol. 65:637

DISCHARGE OF AT WILL EMPLOYEES

mittee.41 The California Court of Appeals stated that the right

to discharge an employee under a contract which does notcontain a fixed duration period "may be limited by statute orby considerations of public policy."'4 Since perjury is an actspecifically prohibited by statute,

[t]o hold that one's continued employment could be madecontingent upon his commission of a felonious act at the in-stance of his employer would be to encourage criminal con-duct upon the part of both the employee and employer andwould serve to contaminate the honest administration ofpublic affairs. This is patently contrary to the publicwelfare.50

In so concluding, the court granted the employee a nonstatu-tory cause of action against the employer.51

In 1973 the Indiana Supreme Court reversed the dismissalof a plaintiff employee's complaint alleging retaliatory dis-charge for filing a worker's compensation claim. In Framptonv. Central Indiana Gas Co.,52 the court acknowledged that, or-dinarily, an at will employee may be dismissed without cause,but, like the California court, it recognized a public policy ex-ception to the general rule. In this case, the employee hadbeen discharged "solely for exercising a statutorily conferredright . . . . ,,53 Both Michigan" and Illinois 5 have citedFrampton in recognizing a public policy exception for wrong-ful discharge of an employee who filed a worker's compensa-tion claim.

Along the same lines, the Oregon Supreme Court, in 1975,found a public policy exception in a case in which the plaintiffwas terminated for not requesting to be excused from juryduty. 6 The court noted that the state constitution and other

48. Id. at _ 344 P.2d at 26.49. Id. at -, 344 P.2d at 27.50. Id.51. Upon remand, the Petermann case resulted in an award of $50,000 in damages

for the plaintiff. The judgment was subsequently affirmed in Petermann v. TeamstersLocal 396, 214 Cal. App. 2d 155, 29 Cal. Rptr. 399 (1963).

52. 260 Ind. 249, 297 N.E.2d 425 (1973).53. Id. at 253, 297 N.E.2d at 428. The court compared this situation to retaliatory

evictions in landlord-tenant law.54. Sventko v. Kroger Co., 69 Mich. App. 644, 245 N.W.2d 151 (1976).55. Kelsay v. Motorola, Inc., 74 IlM. 2d 172, 384 N.E.2d 353 (1978).56. Nees v. Hocks, 272 Or. 210, 536 P.2d 512 (1975).

1982]

MARQUETTE LAW REVIEW

statutes indicated the high value placed on jury duty and rea-soned that the jury system might be adversely affected if theemployee were not allowed to collect damages from theemployer.

57

In another recent case, Harless v. First National Bank,5

the West Virginia court recognized a cause of action in tort59

for a bank employee who was discharged in retaliation for ef-forts to require his employer to comply with consumer creditand protection laws.60 Here too, the employer's reasons for thefiring contravened an established public policy.6 1 Similarly,the California Supreme Court made it clear that an employeewrongfully discharged for refusing to engage in illegal conducthad a remedy in tort. In Tameny v. Atlantic Richfield Co.,6 2 acase in which the plaintiff had refused to participate in anillegal scheme to fix retail gasoline prices,63 the court stated:

[A]n employer's obligation to refrain from discharging anemployee who refuses to commit a criminal act does not de-pend upon any express or implied "promises set forth in the[employment] contract," but rather reflects a duty imposedby law upon all employers in order to implement the funda-mental public policies embodied in the state's penal stat-utes. As such, a wrongful discharge suit exhibits the classicelements of a tort cause of action."

The United States District Court for the Eastern Districtof New York also recognized a cause of action for the tort of"abusive" discharge in Savodnik v. Korvettes, Inc.65 InSavodnik, the firing, allegedly to avoid vesting of a pensionplan, was of "virtually a model employee"66 after thirteenyears. The court specified the elements of a claim: The plain-

57. Id. at -, 536 P.2d at 516. This reasoning was followed by the Pennsylvaniacourt in Reuther v. Fowler & Williams, Inc., 255 Pa. Super. 28, 386 A.2d 119 (1978).

58. 246 S.E.2d 270 (W. Va. 1978).59. Id. at 275 n.5.60. Id. at 272. The plaintiff also alleged intentional infliction of emotional

distress.61. Id. at 275-76.

62. 27 Cal. 3d 167, 610 P.2d 1330, 164 Cal. Rptr. 839 (1980).63. Id. at 169, 610 P.2d at 1331, 164 Cal. Rptr. at 840.64. Id. at 176, 610 P.2d at 1335, 164 Cal. Rptr. at 844 (citation omitted).65. 488 F. Supp. 822 (E.D.N.Y. 1980).66. Id. at 825.

[Vol. 65:637

DISCHARGE OF AT WILL EMPLOYEES

tiff must prove that there is a public policy of the state andthat the policy was violated by the defendant.17

In one of the more far-reaching cases to date, the IllinoisSupreme Court extended its recognition of a cause of action toan abusive discharge which did not undermine a specific stat-utory or constitutional provision but violated judicially de-fined notions of public policy. 8 In Palmateer v. InternationalHarvester Co.,69 the plaintiff was fired for supplying informa-tion to the police about a fellow employee and agreeing to tes-tify if requested.70 Justice Simon stated:

There is no public policy more basic, nothing more implicitin the concept of ordered liberty, than the enforcement of aState's criminal code .... No specific constitutional orstatutory provision requires a citizen to take an active partin the ferreting out and prosecution of crime, but public pol-icy nevertheless favors citizen crime-fighters.7 1

Several jurisdictions have acknowledged a cause of actionfor wrongful discharge based upon public policy, but havefound the exception inapposite to the fact situationpresented. 72 Illustrative are two Pennsylvania cases. Initially,in Geary v. United States Steel Corp.,73 the court affirmedthe dismissal of the plaintiff's complaint alleging his dischargefor pointing out unsafe tubular products (later withdrawnfrom the market) sold to the oil and gas industries74 becausethe complaint itself disclosed a "plausible and legitimate rea-son ' '"5 for the discharge. However, the court suggested that"there are areas of an employee's life in which his employer

67. Id. at 826.68. Palmateer v. International Harvester Co., 85 III. 2d 124, 421 N.E.2d 876

(1981). As in Kelsay, the court allowed punitive damages only in future cases.69. Id.70. Id. at -, 421 N.E.2d at 877.71. Id. at, 421 N.E.2d at 879-80 (citations omitted). But see the strong dissent

by Justice Ryan, the author of the Kelsay opinion. Id. at -, 421 N.E.2d at 881-86.72. See, e.g., Jackson v. Minidoka Irrigation Dist., 98 Idaho 330, 563 P.2d 54

(1977) (employee discharged for participating in unauthorized Christmas fund); Adlerv. American Standard Corp., 291 Md. 31, 432 A.2d 464 (1981) (employee dischargedfor "blowing the whistle" on fellow employees); Keneally v. Orgain, 37 Mont. 154, 606P.2d 127 (1980) (employee discharged in a dispute over a company's internal manage-ment system).

73. 456 Pa. 171, 319 A.2d 174 (1974).74. Id. at 173, 319 A.2d at 175.75. Id. at 184, 319 A.2d at 180.

19821

MARQUETTE LAW REVIEW

has no legitimate interest. An intrusion into one of these areasby virtue of the employer's power of discharge might plausiblygive rise to a cause of action, particularly where some recog-nized facet of public policy is threatened. '76

In Pierce v. Ortho Pharmaceutical Corp.," the court heldthat an at will employee has a cause of action for wrongfuldischarge when the discharge is contrary to a clear mandate ofpublic policy. However, the employee must identify a "specificexpression" of public policy.71 The sources of public policy,according to the Pennsylvania court, include legislation; ad-ministrative rules, regulations or decisions; and judicial deci-sions."9 In Pierce, the plaintiff was a physican who was dis-charged for refusing to continue a research project she viewedas medically unethical.80 In affirming summary judgment forthe defendant, the court distinguished personal ethics fromthe recognized code of ethics of an employee's profession.8 1

Moreover, the plaintiff had merely alleged that the drug wascontroversial, not that it was dangerous.2

Not all states that have considered the issue in recentyears have adopted the public policy exception." Alabama, forexample, refused to create an exception because it would ab-rogate the inherent right of contract between employer andemployee because public policy was "too nebulous astandard.

'8 4

B. Implied Covenant of Good Faith

A few jurisdictions have found an exception to the at willdoctrine based on an implied covenant of good faith and fairdealing in the employment contract. The leading case in thiscategory is Monge v. Beebe Rubber Co.85 In Monge, the plain-

76. Id. at 184-85, 319 A.2d at 180.77. 84 N.J. 58, 417 A.2d 505 (1980).78. Id. at - 417 A.2d at 512.79. Id.80. Id. at -, 417 A.2d at 506.81. Id. at _-, 417 A.2d at 512.82. Id. at -, 417 A.2d at 514.83. E.g., Andress v. Augusta Nursing Facilities, Inc., 156 Ga. App. 775, 275 S.E.2d

368 (1980).84. Hinrichs v. Tranquilaire Hosp., 352 So. 2d 1130, 1131 (Ala. 1977).85. 114 N.H. 130, 316 A.2d 549 (1974). Most courts have refused to adopt the

Monge rationale. See, e.g., Daniel v. Magma Copper Co., 127 Ariz. 320, 620 P.2d 699

[Vol. 65:637

DISCHARGE OF AT WILL EMPLOYEES

tiff, a female factory worker, claimed that she was fired forrefusing "to go out with" her foreman. 6 The New HampshireSupreme Court stated:

[T]he employer's interest in running his business as he seesfit must be balanced against the interest of the employee inmaintaining his employment, and the public's interest inmaintaining a proper balance between the two. We hold thata termination by the employer of a contract of employmentat will which is motivated by bad faith or malice or based onretaliation is not the best interest of the economic system orthe public good and constitutes a breach of the employmentcontract.

8 7

What makes this case exceptional, as the dissent points out, isthat the employee had not pursued the grievance proceduresunder the union contract nor protested her denial of unem-ployment compensation.88

A better-reasoned, but more limited, decision is Fortune v.National Cash Register Co.,8 9 in which the plaintiff salesmanwas allegedly terminated to avoid paying him certain bonuses.Although the written employment contract was terminable atwill by either party, the Massachusetts court held that thecontract contained an implied covenant of good faith and fairdealing.90 Therefore, a termination not made in good faithconstituted a breach of the contract."1 However, the court didnot decide "whether the good faith requirement is implicit inevery contract for employment at will.' ' 2

V. ALTERNATIVE THEORiEs OF RECOVERY

As this sampling of recent cases illustrates, many courtshave not clearly articulated the nature of the underlying causeof action for wrongful discharge. Commentators also have sug-gested a variety of solutions, which are addressed separately

(Ct. App. 1980) and cases cited in Comment, supra note 6, at 737.86. 114 N.H. at -, 316 A.2d at 550.87. Id. at -, 316 A.2d at 551 (citations omitted). Since this was a contract action,

no damages were allowed for mental suffering. Id. at _, 316 A.2d at 552.88. Id. at -, 316 A.2d at 553.89. 373 Mass. 96, 364 N.E.2d 1251 (1977).90. Id. at , 364 N.E.2d at 1256.91. Id.92. Id. at -, 364 N.E.2d at 1257 (emphasis added).

19821

MARQUETTE LAW REVIEW

in the following discussion.

A. A Statute

Several scholars have proposed a statute specificallyprohibiting the unjust dismissal of employees, preferably abroad provision which would leave the courts free to elaborateon a case-by-case basis.9 8 The legislature could draw on theaccepted body of law of the arbitration process or could ex-pand the authority of fair employment and civil rights com-missions.94 The major weakness in this suggestion, however, isthat unorganized employees are not likely to be able to lobbysuccessfully for the enactment of such a statute.9 5

B. Constitutional or Property Law

Another scholar argues for constitutional protection underthe due process and equal protection clauses of the fourteenthamendment."' Still another considers the creation of a prop-erty right in employment more appropriate since constitu-tional restraints on the private employer may not be feasi-ble.9 7 The alternative definition of this new property right(i.e., "the protection of the worker's interest in his employ-ment from discharge without just cause"98 ) and the author'sanalysis are closely related to a tort theory. However, the au-thor is unique in suggesting reinstatement as a possibleremedy.9

C. Contract Theory

More often, commentators l00 and courts10 1 have turned tocontract law to attempt to limit the employer's absolute rightof discharge. Here the traditional doctrines of freedom of con-tract, mutuality of obligation and consideration present formi-

93. E.g., Blades, supra note 13; Summers, supra note 15.94. Blades, supra note 13, at 33; Summers, supra note 15, at 532.95. Peck, supra note 7, at 3.96. See Peck, supra note 7.97. See Comment, supra note 15.98. Id. at 1085 n.24.99. Id. at 1109.100. E.g., Note, supra note 15.101. E.g., Fortune v. National Cash Register Co., 373 Mass. 96, 364 N.E.2d 1251

(1977)."

[Vol. 65:637

DISCHARGE OF AT WILL EMPLOYEES

dable obstacles to modification of the general rule.10 2

One possible way to avoid these obstacles is the idea ofimplied terms in the contract. For example, instead ofpresuming that an employment contract of permanent or un-specified duration is one at will, the courts could construe itas being for a reasonable period, such as one year.103 Alterna-tively, several different factors in the individual employmentsituation could support an argument for implied rights to jobsecurity: 1) separate consideration given by the employer forthe position which would include benefits to the employer,such as surrender of tort claims or contributions to the busi-ness, and special reliance by the employee. (Examples of thelatter are the sale of a business, changing jobs, moving or reli-ance induced by recruitment techniques); 2) the common lawof the job which includes consideration of the policy of thefirm itself as well as the nature of the job and common law ofthe industry; and 3) the longevity of the employee on the jobwhich would include deferred compensation and expressionsof satisfactory performance, such as promotions and salaryincreases.1T '

Promissory estoppel has also been suggested as an avenuearound the traditional contract obstacles,10 5 but not all courtshave accepted this theory,10 6 and it might be difficult for adischarged employee to prove all the elements. 07 Unjust en-richment could be argued if the employee were discharged af-

102. See Comment, Limiting the Employer's Absolute Right of Discharge: CanKansas Courts Meet the Challenge?, 29 U. KAN. L. RE V. 267 (1981).

103. See Note, Employment Contracts of Unspecified Duration, 42 COLUM. L.REv. 107, 122 (1942).

104. See Note, supra note 15, at 351-65.105. See Comment, supra note 102, at 273.106. E.g., Ducote v. Oden, 221 La. 228, 59 So. 2d 130 (1952).107. The doctrine of promissory estoppel is embodied in the RESTATEMENT (SEC-

OND) OF CONTRACTS § 90 (1979), which states: "A promise which the promisor shouldreasonably expect to induce action or forbearance on the part of the promisee or athird person and which does induce such action or forbearance is binding if injusticecan be avoided only by enforcement of the promise." The Wisconsin Supreme Courtadopted the doctrine in Hoffman v. Red Owl Stores, 26 Wis. 2d 683, 133 N.W.2d 267(1965) and stated the conditions imposed as follows: "(1)Was the promise one whichthe promisor should reasonably expect to induce action or forbearance of a definiteand substantial character on the part of the promisee? (2) Did the promise inducesuch action or forbearance? (3) Can injustice be avoided only by enforcement of thepromise?" Id. at 698, 133 N.W.2d at 275.

1982]

MARQUETTE LAW REVIEW

ter completing a task over and above his regular duties."' 8

Under a contract theory, dismissal for cause could be usedas a standard, as in English common law, or the court couldimply a covenant of good faith and fair dealing, as in Fortune,so that a termination motivated by malice or bad faith wouldbe a breach of the employment contract.109 Determining "justcause" or "good faith" in a particular case would necessarilyinvolve balancing the employer's and the employee's interests.An advantage would be that courts are already familiar withthe good faith standard from commercial transactions. Thepublic policy element could also be considered by the court inthe weighing process.110

One disadvantage of proceeding on a contract theory isthat damages are limited to lost wages, although arguably thevalue of lost fringe benefits could be included.1 Additionally,if courts seem willing to imply terms, employers may respondby requiring disclaimer-type clauses in employmentcontracts.'12

D. Tort Law

Many commentators and courts have acknowledged thegreater elasticity of tort principles as the basis for recovery bythe wrongfully discharged employee." 3 As Professor Prosserobserved," [t] ort actions are created to protect the interest infreedom from various kinds of harm. The duties of conductwhich give rise to them are imposed by the law, and are basedprimarily upon social policy, and not necessarily upon the willor intention of the parties."' 14 Analogies have been made tothe torts of bad faith, 1 5 abuse of process," 6 intentional inter-

108. The essential elements of unjust enrichment are:1) a benefit conferred upon the defendant by the plaintiff,.2) knowledge or appreciation of the benefit by the defendant,3) acceptance and retention by the defendant of such benefit under such cir-cumstances that it would be inequitable for him to retain it without paying thevalue thereof.

WISCONSIN CIVrM JURY INSTRUCTIONS 3028 (1979).109. Note, supra note 15, at 366-68.110. See generally Comment, supra note 37.111. Of course, mitigation of damages would be required.112. See Note, supra note 10, at 1455-56; Note, supra note 41, at 1833 n.91.113. E.g., Comment, supra note 102, at 273.114. W. PROSSER, HANDBOOK OF THE LAW OF TORTS § 92, at 613 (4th ed. 1971).115. See, e.g., Comment, supra note 37, at 94.

[Vol. 65:637

DISCHARGE OF AT WILL EMPLOYEES

ference with a contract by the third party,117 outrage (i.e., theintentional infliction of emotional distress)""' and to the pro-tection provided consumers in the products liability area." 9

The primary advantage to the plaintiff of a tort cause ofaction, of course, is the availability of damages for mental suf-fering and of punitive damages in aggravated circumstances.Moreover, it may be easier to convince courts to provide a tortremedy in an individual instance. Implying terms such as justcause or good faith may seem to be a complete abrogation ofthe at will doctrine. 20 On the other hand, in some jurisdic-tions, a plaintiff may proceed in both contract and tort underthe public policy exception. 12

1

VI. LIMITATIONS OF WRONGFUL DISCHARGE ACTIONS

The area of wrongful discharge is obviously ripe for litiga-tion. But the Geary court pointed out some of the disadvan-tages of allowing this type of suit, including the potential bur-den on the judicial system due to the increased case load andthe difficult problems of proof. 22 Abuse is particularly likelyto arise in "whistle blowing" cases."2" It is conceivable, more-over, that an employee who fears imminent discharge will filea fictitious worker's compensation claim in order to preventthe discharge. 24 The constant threat of suit may inhibit theemployer's necessary power to make critical judgments aboutemployees - particularly professional, managerial and otherhigh ranking personnel. 125

116. See, e.g., Comment, supra note 102, at 273-74.117. See, e.g., Peck, supra note 7, at 13.118. See, e.g., Comment, supra note 102, at 274.119. See, e.g., Note, supra note 41, at 1838.120. In refusing to follow Monge, the court in Daniel v. Magma Copper Co., 127

Ariz. 320, 620 P.2d 699 (Ct. App. 1980), called it a "substitute for a union collectivebargaining agreement." Id. at -, 620 P.2d at 703.

121. See, e.g., Cleary v. American Airlines, Inc., 111 Cal. App. 3d 443, 168 Cal.Rptr. 722 (1980).

122. Geary v. United States Steel Corp., 456 Pa. 171, -, 319 A.2d 174, 179(1974).

123. Olsen, Wrongful Discharge Claims Raised by At Will Employees: A NewLegal Concern for Employers, 32 LAB. L.J. 265, 278 n.6 (1981). See generally Com-ment, Protecting the Private Sector At Will Employee Who "Blows the Whistle" ACause of Action Based Upon Determinants of Public Policy, 1977 Wis. L. REv. 777.

124. See Note, supra note 30, at 680.125. Geary v. United States Steel Corp., 456 Pa. 171, _, 319 A.2d 174, 179

(1974).

MARQUETTE LAW REVIEW

The problem of proof is not insurmountable, however. Ahigher burden of proof or corroboration could be required, orthe court could establish a presumption of good cause, exceptfor long-tenured employees. 126 Recognition of a cause of ac-tion might lead employers to seek private means of settle-ment, such as arbitration. 127 Moreover, providing relief for ar-bitrary or retaliatory discharge would not deprive theemployer of his right to discharge for cause. Any interferencewith his legitimate business operations would be "minimal incomparison with the rights sought to be protected.21 28

One author fears that the "broad brush" nature of thepublic policy exception to the at will doctrine could lead togreater protection for the at will employee than that given tounionized employees."2" For instance, the California court, inPetermann, defined public policy as "that principle of lawwhich holds that no citizen can lawfully do that which has atendency to be injurious to the public or against the publicgood . .... 30 However, cases recognizing a public policy ex-ception have generally fallen into definite categories. The first,discharge for refusal to violate a criminal statute at the em-ployer's command, could be considered a per se violation ofpublic policy. The second is discharge for exercising a sub-stantive statutory right. The worker's compensation cases fallinto this class." 1 The third category is discharge for comply-ing with a statutory duty such as serving on a jury. The fourthis discharge in violation of general public policy - that is,there is no specific legislative expression of public policywhich the court can point to so that its definition must begrounded solely on common law principles. Monge would fallinto this category.

Most courts have rejected cases falling into the fourth cat-egory, insisting that there be a "clear mandate" of public pol-icy. 32 Other restrictions on the use of the public policy excep-

126. See Blades, supra note 15, at 1429.127. Id. at 1431.128. Comment, supra note 15, at 1109.129. Olsen, supra note 123, at 283 n.77.130. Petermann v. International Brotherhood of Teamsters, 174 Cal. App. 2d 184,

. 344 P.2d 25, 27 (1959).131. See generally Comment, supra note 6.132. See Annot., 63 A.L.R.3d 979 (1975 & Supp. 1981).

[Vol. 65:637

DISCHARGE OF AT WILL EMPLOYEES

tion have also arisen. For instance, it has been held that thepublic policy must affect a significant interest of the commu-nity.133 There cannot be a purely private interest at stake.13

4

Alternatively, the employer can argue that the statute itselfestablishes an adequate legal remedy.13 5

VII. THE PRESENT STATUS OF THE LAW IN WiSCONSIN

A. Supreme Court Decisions

As indicated in the introduction to this comment, Wiscon-sin has followed the general rule that employment for an in-definite period is terminable at any time, at the will of eitherparty. The most recent Wisconsin Supreme Court decisionsdealing with the issue have reiterated the court's adherence tothe doctrine.

In Forrer v. Sears, Roebuck & Co.,'36 decided in 1967, theplaintiff brought suit on a promissory estoppel theory claim-ing damages for discharge without cause after the defendanthad allegedly promised him permanent employment.13 7 Thecourt concluded "that a permanent employment contract isterminable at will unless there is additional consideration inthe form of an economic or financial benefit to the employer.A mere detriment to the employee is not enough."' "

A somewhat different situation was presented in Goff v.Massachusetts Protective Association,'3 " decided in 1970. InGoff, the plaintiff was an insurance agent who brought suit torecover certain commissions after the termination of his con-tracts with two insurance companies. 1'4 0 There was no provi-sion in the contracts that a termination be for cause althoughthey did provide a method for termination.'' Finding an ear-lier Wisconsin decision controlling, the court concluded thatwhen an employment contract for an indefinite term was si-lent concerning the grounds for termination, "such silence in-

133. E.g., Adler v. American Standard Corp., 291 Md. 31, 432 A.2d 464 (1981).134. E.g., Nees v. Hock, 272 Or. 210, 536 P.2d 512 (1975).135. E.g., Schroeder v. Dayton-Hudson Corp., 448 F. Supp. 910 (E.D. Mich. 1977).136. 36 Wis. 2d 388, 153 N.W.2d 587 (1967).137. Id. at 390, 153 N.W.2d at 588.138. Id. at 394, 153 N.W.2d at 590.139. 46 Wis. 2d 712, 176 N.W.2d 576 (1970).140. Id. at 713, 176 N.W.2d at 577.141. Id. at 714, 176 N.W.2d at 577.

1982]

MARQUETTE LAW REVIEW

dicates an intent of the parties that the contract can be termi-nated at will or without cause and the court cannot read intothe silence of the contract a reasonable or just cause."142

In Yanta v. Montgomery Ward & Co., a 1974 case involv-ing statutes which prohibited sex discrimination,143 the su-preme court again noted that "[iln the absence of contrarystatutory or contract provisions, an employer may dischargehis employees for any reason without incurring liabilitytherefor.'

144

B. The Appeals Court Decisions

The general rule appeared to be well-established in Wis-consin until the appeals court rendered a decision which sug-gested that Wisconsin would adopt a public policy exceptionto the at will doctrine under appropriate facts. In Ward v.Frito-Lay, Inc.,45 the trial court had awarded compensatoryand punitive damages to the plaintiff for his allegedly wrong-ful discharge." After briefly reviewing cases in other jurisdic-tions modifying the general rule, the appeals court was per-suaded that it was "not in the public interest for courts touniformly honor private contractual rights when to do sowould contravene public policy. 47 However, Judge John P.Foley distinguished the plaintiff's fact situation from the casesdiscussed: Ward was fired because his relationship with a fel-low employee was causing dissension at the Frito-Lay factory,"not because he was attempting to exercise some statutorilyor constitutionally guaranteed right or perform some publicduty.",'"

The court also rejected Ward's argument that his dis-charge contravened a public policy in favor of peaceful laborrelations as stated in section 111.01 of the Wisconsin Statutes

142. Id. at 715, 176 N.W.2d at 578 (citations omitted).143. Wis. STAT. §§ 111.31-.37 (1973).144. 66 Wis. 2d 53, 63 n.16, 224 N.W.2d 389, 394 n.16 (1974).145. 95 Wis. 2d 372, 290 N.W.2d 536 (Ct. App. 1980) (District Il).146. Id. at 373, 290 N.W.2d at 536.147. Id. at 376, 290 N.W.2d 537.148. Id. at 376, 290 N.W.2d at 538. Ward and a female co-worker, although not

married, were living together at the time. The fellow employee had tried to bid ontothe same shift as Ward even though Frito-Lay had a rule against relatives working onthe same shift. Apparently, their relationship had caused employee comment, insub-ordination and the filing of a grievance.

[Vol. 65:637

DISCHARGE OF AT WILL EMPLOYEES

(the preamble to the Employment Peace Act). 149 Additionally,neither section 134.03 (prohibiting interferences with an indi-vidual's engagement in lawful work) 50 nor section 134.01(prohibiting malicious conspiracies) 151 applied. Finally, thecourt discussed the Monge exception to the general rule, butconcluded that Ward had not shown that Frito-Lay acted ma-liciously or in bad faith.152

A year later the Wisconsin appeals court reiterated thegeneral rule in Wisconsin as follows: "In the absence of con-trary statutory or contract provisions, an employer may dis-charge its employees for any reason without incurring liabil-ity'' 53 - without any reference to Ward. In Bachand v.Connecticut General Life Insurance Co., the discharged em-ployee had brought an action under the Fair EmploymentAct, 5 4 which was specifically designed to discourage dis-criminatory firing. 5 5 The court of appeals ruled that the Actitself provided the exclusive remedy for lost wages due to aviolation of the Act.'56 Although the element of intent wasmissing in this particular case, the court acknowledged thatdamages for intentional infliction of emotional distress mightbe recoverable in a separate tort action.15

C. Recent Federal Decisions Interpreting Wisconsin Law

The United States District Court for the Eastern Districtof Wisconsin had occasion to interpret Wisconsin law gov-erning retaliatory discharges in McCluney v. Jos. Schlitz

149. 95 Wis. 2d at 376, 290 N.W.2d at 538; Wis. STAT. § 111.01 (1979).150. Wis. STAT. § 134.03 (1979).151. Wis. STAT. § 134.01 (1979).152. 95 Wis. 2d at 377, 290 N.W.2d at 538. In fact, Frito-Lay kept Ward on the

payroll long enough for his pension to vest. It also gave him a good job reference.Initially, Ward and the co-worker were given the choice of which of them shouldleave.

153. Bachand v. Connecticut Gen. Life Ins. Co., 101 Wis. 2d 617, 630-31, 305N.W.2d 149, 155 (Ct. App. 1981) (District II).

154. Wis. STAT. §§ 111.31-.37 (1979). Bachand claimed that he was fired becauseof his alcoholism. 101 Wis. 2d at 620, 305 N.W.2d at 150.

155. Id. at 623, 305 N.W.2d at 152. The Fair Employment Act is the Wisconsinequivalent of federal civil rights statutes.

156. Id. at 624, 305 N.W.2d at 152. Therefore, Bachand could not be awardedcompensatory or punitive damages for emotional distress.

157. Id. at 630, 305 N.W.2d at 155.

19821

MARQUETTE LAW REVIEW

Brewing Co.1 8 The plaintiff contended that a private cause ofaction should be implied because his discharge, for oppositionto his employer's allegedly discriminatory employment prac-tices against women, violated the public policies expressed infour different Wisconsin statutes. 159 Noting that the Wiscon-sin Supreme Court had not yet considered whether the publicpolicy or bad faith modification to the general rule should beadopted, the district court, nevertheless, quoted from the ap-peals court decision in Ward.60 However, Judge Gordonfound that with regard to two of the statutes, the plaintiff'sallegations fell outside the coverage of the statute.'"' In regardto the other two, he concluded that Wisconsin courts wouldnot imply a private cause of action based on such policy viola-tions because the legislature had already provided extensiveenforcement mechanisms.1 2

In Halsell v. Kimberly-Clark Corp.,63 the United StatesDistrict Court for the Eastern District of Arkansas recentlyinterpreted Wisconsin law in a wrongful discharge case wherethe contract for employment was not for a specified time. Thecourt's conclusion was that such an employment relationshipcontinues at the will of either party." Interestingly, the courtcited Ward as authority for its statement that this principleremains in effect in Wisconsin.'6 5

VIII. THE FUTURE OF WRONGFUL DISCHARGE IN WISCONSIN

It is only a matter of time until the Wisconsin SupremeCourt faces the issue of whether to recognize a cause of actionfor the wrongfully discharged at will employee. Although theWard and Bachand courts seem to indicate opposite conclu-sions, it is important to remember that there are a number ofother theories under which a plaintiff can proceed so that re-covery is not an all or nothing proposition.

Some decisions by the supreme court, such as Goff, indi-

158. 489 F. Supp. 24 (E.D. Wis. 1980).159. Id. at 26.160. Id.161. Id.162. Id. at 27.163. 518 F. Supp. 694 (E.D. Ark. 1981).164. Id. at 696.165. Id.

[Vol. 65:637

DISCHARGE OF AT WILL EMPLOYEES

cate its reluctance to imply terms in an employment contract.Goff may be distinguishable, however, in that the contract inquestion provided a method for termination - it was only si-lent as to the grounds.

The court left the door open to some arguments for im-plied rights to job security in Kovachik v. American Automo-bile Association, 6' when it modified the general rule that ahiring at a specified amount per year would be construed as acontract for an indefinite period by adding that "in the ab-sence of facts or contractual provisions showing a contrary in-tent.1167 In the Forrer case, the plaintiff tried to show thatother circumstances, specifically, giving up his farming opera-tions at a loss to manage defendant's store, manifested theparties' intent to bind each other to "permanent" employ-ment.16 The court indirectly concluded that the doctrine ofpromissory estoppel was not applicable, noting that the mostthat had been promised Forrer was employment terminable atwill and Sears had fulfilled that promise by hiring him. How-ever, the court stated that the plaintiff might have a breach ofcontract action if he could show that he furnished additionalconsideration in the form of economic benefit to theemployer.16 9

In addition, decisions in other contexts indicate that thecourt would not enforce a provision in a contract that wascontrary to public policy.170 It is only one step further to de-clare that bad faith in the employment at will relationship isagainst public policy, as the Monge court did.

The analogy to the tort of bad faith is particularly apt inWisconsin, which recognizes that a special duty arises betweeninsurer and insured by virtue of their relationship (created bythe contract). If the supreme court chooses to follow Ward,

166. 5 Wis. 2d 188, 92 N.W.2d 254 (1958).167. Id. at 190, 92 N.W.2d at 255.168. Forrer v. Sears, Roebuck & Co., 36 Wis. 2d 388, 392, 153 N.W.2d 587, 590

(1967).169. Id. at 392-94, 153 N.W.2d at 589-90.170. See, e.g., Griffith v. Harris, 17 Wis. 2d 255, 116 N.W.2d 133 (1962) (contracts

which impose obligations that are contrary to public policy are unenforceable);Dunphy Boat Corp. v. Wisconsin Emp. Relations Bd., 267 Wis. 316, 64 N.W.2d 866(1954) (a provision in a collective bargaining agreement requiring the doing of some-thing illegal or against public policy would be void).

171. See Anderson v. Continental Ins. Co., 85 Wis. 2d 675, 271 N.W.2d 368 (1978).

1982]

MARQUETTE LAW REVIEW

language in that case suggests that good faith is also requiredin the employer-employee relationship, even as to employeesat will. 172 Although Monge was a contract action, it seemsmore likely that the Wisconsin court will acknowledge a tortcause of action because of the similarity to the tort of badfaith.

If the Wisconsin Supreme Court accepts the appealscourt's conclusion in Ward that a cause of action for wrongfuldischarge should be recognized when public policy is violated,additional language in Ward indicates that a plaintiff wouldhave to prove that he was "attempting to exercise some statu-torily or constitutionally guaranteed right or perform somepublic duty."' 73 The court did not want to "second-guess" thebusiness judgment of the defendant "absent a clearly definedand well-established public policy."'1 74

There are a number of Wisconsin statutes which couldform the basis for such a cause of action. 175 However, the Ba-chand and McCluney decisions indicate that the Wisconsincourt will adhere strictly to the view that where the legislaturehas provided statutory remedies for the enforcement of par-ticular rights, those remedies should be exclusive. 7

If a wrongfully discharged at will employee could meet the

172. 95 Wis. 2d at 377, 290 N.W.2d at 538.173. Id. at 376, 290 N.W.2d at 538.174. Id.175. E.g., Wis. STAT. § 102.35 (1979) (worker's compensation); Wis. STAT. § 946.31

(1979) (perjury); Wis. STAT. § 756.01(2) (1979) (jury service).176. This could be an obstacle to using the worker's compensation statute. Wis.

STAT. § 102.35 provides penalties as follows:(2) Any employer, or duly authorized agent thereof, who, without reasonablecause, refuses to rehire an employe injured in the course of employment, orwho, because of a claim or attempt to claim compensation benefits from suchemployer, discriminates or threatens to discriminate against an employe as tothe employe's employment, shall forfeit to the state not less than $50 nor morethan $500 for each offense. No action under this subsection may be com-menced except upon request of the department.(3) Any employer who without reasonable cause refuses to rehire an employewho is injured in the course of employment, where suitable employment isavailable within the employe's physical and mental limitations, upon order ofthe department and in addition to other benefits, has exclusive liability to payto the employe the wages lost during the period of such refusal, not exceedingone year's wages. In determining the availability of suitable employment thecontinuance in business of the employer shall be considered and any writtenrules promulgated by the employer with respect to seniority or the provisionsof any collective bargaining agreement with respect to seniority shall govern.

[Vol. 65:637

DISCHARGE OF AT WILL EMPLOYEES

prerequisites established in Alsteen v. Gehl,1"7 the court inBachand indicated that he or she could maintain a separateaction for the intentional infliction of emotional distress. 17 8

Where there is evidence that the discharge resulted from pres-sure from an outside source, a cause of action under the Wis-consin conspiracy statute1 79 could be included.

IX. CONCLUSION

The American legal system has increasingly recognized theneed to limit the traditional rule that an at will employee maybe terminated for any reason or for no reason at all. By bal-ancing the legitimate business interests of the employer withthe interest of the employee and the public, courts have at-tempted to restrict the arbitrary or retaliatory exercise of theemployer's power. Although the nature of the underlyingcause of action has not always been clearly articulated, twomain exceptions to the common law rule have developed al-lowing relief to the wrongfully discharged employee: 1) wherethe discharge was for reasons contravening public policy; and2) for discharge that was motivated by bad faith or malice.

The Wisconsin Supreme Court has not yet consideredwhether either exception should be adopted. While the ap-peals court in Ward seemed to acknowledge both, the appealscourt in Bachand adhered to the traditional rule. If the su-preme court is faced with the issue directly, it is likely to ac-cept some modification of the at will doctrine, but the court isalso apt to limit the source of any definition of public policyto specific legislation which does not provide a correspondingremedy.

FAYE L. CALvEY

177. 21 Wis. 2d 349, 124 N.W.2d 312 (1963). The Alsteen criteria are:1) that the defendant's conduct was extreme and outrageous;2) that the defendant behaved as he did for the purpose of causing emo-

tional distress for the plaintiff;3) that the defendant's conduct was a cause-in-fact of the injury; and4) that the plaintiff siffered an extreme disabling emotional response.

178. Bachand v. Connecticut Gen. Life Ins. Co., 101 Wis. 2d 617, 630, 305 N.W.2d149, 155 (Ct. App. 1981) (District II).

179. Wis. STAT. § 134.01 (1979). Although this is a criminal statute, it also givesrise to a civil cause of action. See Radue v. Dill, 74 Wis. 2d 239, 246 N.W.2d 507(1976).

1982]